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United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued October 4, 2004 Decided November 5, 2004

No. 04-3026

UNITED STATES OF AMERICA,

APPELLANT

v.

EDWARD N. HOLMES,

APPELLEE

Appeal from the United States District Court

for the District of Columbia

(No. 03cr00508–01)

John P. Gidez, Assistant U.S. Attorney, argued the cause

for appellant. With him on the briefs were Kenneth L.

Wainstein, U.S. Attorney, and John R. Fisher and Elizabeth

Trosman, Assistant U.S. Attorneys. Mary M. Petras, Assistant U.S. Attorney, entered an appearance.

 Bills of costs must be filed within 14 days after entry of judgment.

The court looks with disfavor upon motions to file bills of costs out

of time.
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Lisa B. Wright, Assistant Federal Public Defender, argued

the cause for appellee. With her on the brief was A.J.

Kramer, Federal Public Defender.

Before: ROGERS, TATEL, and GARLAND, Circuit Judges.

Opinion for the Court filed by Circuit Judge TATEL.

TATEL, Circuit Judge: The government appeals the district

court’s suppression of evidence the police discovered during a

search that, according to the district court, ran afoul of the

federal knock and announce statute. The district court,

however, failed to make a finding on a critical issue, i.e.,

whether the police announced ‘‘warrant’’ before entering the

premises, leaving us unable to perform our appellate function.

Accordingly, we vacate the district court’s order and remand

for further proceedings consistent with this opinion.

I.

The knock and announce statute, 18 U.S.C. § 3109, provides that an ‘‘officer may break open any outer or inner door

or window of a house TTT to execute a search warrant, if,

after notice of his authority and purpose, he is refused

admittanceTTTT’’ ‘‘Codifying a tradition embedded in Anglo–

American law,’’ section 3109 declares the ‘‘reverence of the

law for the individual’s right of privacy in his house.’’ Miller

v. United States, 357 U.S. 301, 313 (1958). The principles

underlying the statute also form part of the Fourth Amendment’s reasonableness inquiry, as the reasonableness of a

search of a dwelling may vary depending on whether the

police announced their presence and authority. Wilson v.

Arkansas, 514 U.S. 927, 930, 936 (1995).

In this case, D.C. Metropolitan Police Officer Anthony

Guice, based on his affidavit that a ‘‘special employee’’ had

purchased drugs from ‘‘Eddie’’ at 800 Southern Avenue, S.E.,

Apartment 1214, obtained a search warrant for the premises.

To execute the warrant, Guice and several other officers

waited in a stairwell one floor below the apartment until

undercover officers stationed in the twelfth floor hallway

signaled that the ‘‘target’’ had just left Apartment 1214 and

was standing in the hallway at the apartment’s front door.
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Led by Officer Andre Martin, the officers, wearing police

jackets and vests and with badges hanging around their

necks, rushed up the stairs to the apartment door, where they

found appellee Edward Holmes holding a set of keys.

According to Martin, he twice said to Holmes, ‘‘[P]olice,

search warrant,’’ but—significantly for this appeal—the district court never expressly made this finding. Taking the

keys from Holmes’s hand, Martin unlocked the door and

together with several other officers entered and seized a rifle,

several rounds of ammunition, and a bag of heroin. No one

was inside the apartment. The officers arrested Holmes, and

a grand jury later indicted him on one count of unlawful

possession of a firearm and ammunition by a convicted felon,

see 18 U.S.C. § 922(g)(1), one count of unlawful possession of

ammunition by a convicted felon, see id., and one count of

heroin possession, see 21 U.S.C. § 844(a).

Before trial, Holmes moved to suppress the evidence seized

in the apartment, arguing that the police had violated section

3109. At the evidentiary hearing, the government called

Officer Guice, who testified that he reached the apartment

door ‘‘two to three seconds’’ after the first wave of officers,

and that he heard no exchanges between the officers and

Holmes. Asked whether the officers had knocked, Guice

answered no, explaining, ‘‘Since we had the keys, I didn’t feel

we needed to knock on the door.’’ Defense counsel argued

that this testimony demonstrated a violation of section 3109

because the officers ‘‘did not knock, did not announce, did not

say warrant, did not say anything to Mr. Holmes before

opening the door with the keys.’’

The day after Guice testified, the prosecutor received permission to reopen the hearing to call Officer Martin. Martin

testified that as he approached the door carrying a battering

ram, he said to Holmes, ‘‘Police, search warrant,’’ loudly

enough that anyone in the hallway would have heard. According to Martin, Holmes asked what was going on, at which

point Martin took the keys from Holmes’s hand and said,

‘‘This is a search warrant.’’ Martin also testified that he had

an exchange with Holmes during which Martin asked Holmes
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which key opened the door, but the district court struck this

conversation as violating Federal Rule of Criminal Procedure

16, which requires the prosecution to turn over to defense

counsel evidence of any statements by the defendant.

The government argued that if, during the execution of a

warrant, the defendant (1) has notice of the officers’ authority

and purpose and (2) is standing outside the door of his

dwelling, a formal knock and announce would be superfluous.

Relying on a Fourth Circuit decision, the government urged

the district court to find the officers’ actions reasonable under

the circumstances. See United States v. Dunnock, 295 F.3d

431, 435 (4th Cir.) (holding that knock and announce would

have been futile when defendant received ‘‘functional equivalent of notice of authority and purpose’’ after police arrested

and questioned him about whether he had a key to the door

and whether anyone was inside), cert. denied, 537 U.S. 1037

(2002).

In its findings of fact, the district court restated Martin’s

testimony, but made no finding as to whether Martin actually

announced ‘‘warrant’’ before taking Holmes’s keys and unlocking the door. The court noted only that ‘‘there was a

conversation of some kind between Officer Martin and the

defendant,’’ presumably alluding to the discussion about

which key opened the door and possibly to Holmes’s asking

what was going on. Tr. 2/20/04 at 69. The district court also

found that the officers ‘‘knew nothing about whether there

was anyone else in the apartment, who the apartment was

rented to, who actually lived in the apartment, and did not

know for sure that the gentleman they stopped outside the

apartment, namely Mr. Holmes, was the ‘Eddie’ referred to in

the search warrant.’’ Tr. 2/20/04 at 76. Concluding that the

police had failed to comply with section 3109, and rejecting

the government’s functional equivalence argument, the district court granted the motion to suppress the gun, the

ammunition, and the drugs.

II.

Reiterating its position in the district court, the government argues that the officers fulfilled the purposes of the
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knock and announce statute despite their undisputed failure

to formally knock—the traditional means of providing notice

of police authority before entering a home—or to give Holmes

an opportunity to consent to or refuse their entry. Specifically, the government asserts that Martin, by twice identifying

himself and informing Holmes of the warrant, provided the

functional equivalent of notice of authority and purpose,

rendering irrelevant from Holmes’s perspective not only the

officers’ failure to knock, but also their ignorance as to

whether anyone was inside the apartment. Technical compliance with section 3109, the government argues, is unnecessary when the search implicates none of the three core values

protected by the statute: ‘‘(1) reducing the potential for a

violent confrontation between the police and an occupant

startled by an unannounced intrusion; (2) preventing needless destruction of private property; and (3) showing respect

for the individual’s privacy interest in his home.’’ United

States v. Kemp, 12 F.3d 1140, 1142 (D.C. Cir. 1994). According to the government, violence in this case was unlikely

because Martin announced they were police officers with a

warrant, and no one was inside the apartment; no destruction

of private property occurred because the officers used

Holmes’s key to gain entry; and Holmes had only a minimal

privacy interest in the apartment because he was not in the

apartment and knew from Martin’s statement that a warrantauthorized search was imminent.

Significantly for our purposes, the government never argues that functional compliance with section 3109 could have

been achieved had Martin failed to provide notice by saying

‘‘warrant.’’ In other words, as the government explained at

oral argument, its theory that no section 3109 violation occurred assumes that Martin in fact said ‘‘warrant.’’ The

district court’s failure to make a finding on this critical issue,

the government insists, presents no problem: since the court

never discredited Martin’s testimony, we should assume it

believed that Martin actually said ‘‘warrant.’’ For several

reasons, we cannot make such an assumption.

To begin with, the district court’s findings are quite comprehensive, leaving us hesitant to assume that the court made
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a finding it never mentioned. Reviewing those findings,

moreover, we cannot tell precisely what the district court

thought about Martin’s testimony. The court stated, ‘‘Ultimately [Martin] took the keys from the defendant. There

was a conversation of some kind between Officer Martin and

the defendant. However, TTT the Court suppressed those

statements TTT because there had been a violation of rule 16.’’

Tr. 2/20/04 at 69. The district court also stated that Martin

testified

he did not knock because he had the keys, TTT he never

asked the defendant for permission to enter the apartment, and that was because the officer knew that there

was a search warrant. Officer Martin also testified that

he never asked whether anyone was inside the apartment, and that he had absolutely TTT no knowledge of

whether anyone else was in the apartment.

Id. From these passages, we have no idea whether the

district court believed Martin announced ‘‘warrant,’’ but failed

to mention it, or whether the court discredited that statement—either because it conflicted with Guice’s testimony that

he never heard Martin say anything at all, or because the

district court simply found Martin not credible on that issue.

Moreover, when describing Martin’s testimony that he was

the first to see Holmes standing in front of his apartment, the

district court stated that ‘‘the Court does credit Officer

Martin’s testimony on this.’’ Id. at 68 (emphasis added).

But the court neither explained what it thought about the

other aspects of Martin’s testimony discussed in its findings

nor even mentioned the warrant statement.

The district court’s conclusions likewise reveal little about

whether the court credited Martin’s warrant testimony. ‘‘[I]t

is undisputed,’’ the district court said, ‘‘that the police did not

knock and announce, and certainly did not follow the requirements of the Federal statute.’’ Id. at 75 (emphasis added).

As Holmes points out, this could be read to suggest that the

court discredited Martin, for why else would it have found

that the police failed to ‘‘knock and announce’’? On the other

hand, as the government suggested at oral argument, perhaps
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the district court used the phrase ‘‘knock and announce’’ to

indicate the officers would have violated the statute unless

they knocked and announced. Viewed this way, the district

court’s statement could mean that the court credited Martin’s

announcement of ‘‘police, search warrant,’’ but found the

absence of a formal knock to have violated section 3109.

Although the government’s interpretation is plausible, we

think it unwise to resolve an issue so critical to Holmes’s

claim on the basis of an assumption about what the district

court may have meant by the phrase ‘‘knock and announce.’’

The government offers a second reason for assuming that

the district court credited Martin’s testimony: according to

the government, Martin’s testimony does not actually conflict

with Guice’s. Emphasizing Guice’s testimony that ‘‘Martin

and [another officer] got to [Holmes] prior to me getting to

him, and if they asked him anything, it was not to my

knowledge,’’ the government theorizes that Martin could have

said ‘‘warrant’’ to Holmes before Guice’s arrival. This theory

finds support in the district court’s statement that ‘‘[t]here

was a conversation of some kind between Officer Martin and

the defendant.’’ On the other hand, other testimony in the

record could be viewed as contradicting the government’s

theory. Martin testified that the other officers arrived at the

apartment door essentially at the same time and not more

than a second after he did. He also said he had announced

warrant loudly enough that the ‘‘other officers should have

heard.’’

For his part, Holmes urges us to construe the record in the

light most favorable to upholding the district court’s ruling—

that is, to assume that the district court discredited Martin

and believed that the officers neither knocked nor announced.

Although this circuit has stated that ‘‘we must uphold the

ruling of the trial court if there is any reasonable view of the

evidence that will support it,’’ Scarbeck v. United States, 317

F.2d 546, 562 (D.C. Cir. 1962), we held in United States v.

Williams, 951 F.2d 1287, 1289 (D.C. Cir. 1991), that we will

not do so where we ‘‘do not know which facts the district

court considered ‘essential’ to its ruling,’’ see also United

States v. Jordan, 951 F.2d 1278, 1283 (D.C. Cir. 1991) (re-
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manding appeal from a suppression motion denial for a

finding on a ‘‘key factor’’ for determining whether a seizure

occurred). We think this is such a case. Because we cannot

tell whether the district court believed that Martin said

‘‘warrant,’’ we find ourselves in the unusual situation of being

unable to deduce what, if any, role this crucial testimony

played in the district court’s disposition of this case. See

United States v. Johnson, 212 F.3d 1313, 1316 (D.C. Cir.

2000) (noting necessity of remand where there is ‘‘genuine

uncertainty about what the district court did’’). As the

government states in its reply brief, in such circumstances a

remand to resolve the ambiguity is warranted. See United

States v. Goree, 365 F.3d 1086, 1094-95 (D.C. Cir. 2004).

III.

In sum, the district court’s failure to resolve the key

question of Martin’s credibility makes it impossible for us to

perform our appellate function. ‘‘The purpose of an appeal is

to review the judgment of the district court, a function we

cannot properly perform when we are left to guess at what it

is we are reviewing.’’ Williams, 951 F.2d at 1290. We

therefore vacate the district court’s order and remand for

further proceedings consistent with this opinion.

So ordered.